The Barely Noticed Call To Upend American Citizenship

In the latter portions of Monday night's Republican presidential debate, the candidates were asked how they would "prevent illegal immigrants from using our health care, educational, or welfare systems." The topic quickly veered into a discussion of citizenship, as debate moderator and CNN anchor John King asked: "If there are two illegal immigrants, two adults who came into this country illegally, and they have a child, should that child be considered a citizen of the United States?"

Herman Cain answered "I don't believe so." He elaborated on his answer after the debate, telling ThinkProgress that the "14th Amendment doesn't talk about people that were here illegally." Tim Pawlenty, who has previously endorsed revoking the birthright citizenship clause of the 14th Amendment, said that birthright citizenship came about "because a U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution."

This is a big deal. At least two people running for the presidency want to change the fundamental notion of American citizenship as it has been understood since Reconstruction. Indeed, they want to change the Constitution to achieve that end. But their position is not getting much in the way of media attention.

A search of press reports on Monday night's debate turned up little significant coverage from any major news outlets on Cain's and Pawlenty's position on birthright citizenship. Fox Business Network's Eric Bolling aired of clip of King's exchange with Cain on the June 14 edition of Follow The Money and asked Rep. Louie Gohmert (R-TX) to comment on it. (Gohmert endorsed Cain's position.) The Washington Post's Jennifer Rubin wrote in her post-debate wrap-up that Pawlenty "played to the exclusionists by asserting that 'birthright citizenship' should be repealed," adding: "He needs a brush up course on the 14th Amendment." CNN gave it no air time, despite specifically raising the issue at the debate.

This lack of media scrutiny is puzzling. The definition of citizenship is at the core of any debate over immigration. And the slew of controversial state-level immigration bills passed this year, along with census data showing a decennial explosion in America's Hispanic population, guarantees that immigration will occupy much of the 2012 candidates' time and attention.

In the past few years the push to end birthright citizenship has steadily gained traction among conservative media and Republicans. Last August, Senator Lindsey Graham (R-SC) declared that the 14th Amendment needed to be changed because "birthright citizenship doesn't make so much sense when you understand the world as it is." Both Senate minority leader Mitch McConnell and then-House minority leader John Boehner said the idea was worth considering. Fox News has treated the idea of birthright citizenship as an open question, going so far as to call the 14th Amendment "the anchor baby amendment," a slur referring to the American-born children of non-citizens.

Citizenship by birth (and regardless of parentage) has been the law of the land for nearly 150 years. It is part of the mainstream fabric of American society and enjoys mountains of legal, scholarly, and historical affirmation. Writing in the Spring 2011 edition of Public Eye, University of Maryland law professor Sherrilyn Ifill argued that, to the framers of the citizenship clause of the 14th Amendment, "the principle of birthright citizenship was deemed critical to the transformation of the United States." According to Ifill: "In the interest of articulating an undiluted principle of equality in citizenship, the Framers chose to ensure that any person born on U.S. soil would be a citizen of the new United States."

In the 1898 Wong Kim Ark case, the Supreme Court ruled that a man born in the United States to non-citizen Chinese parents was, under the 14th Amendment, a citizen of the United States. Justice Gray wrote in the majority opinion: "The fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution."

The Supreme Court has since adhered to this understanding of the 14th Amendment. In INS v. Rios-Pineda (1985), the unanimous court opinion observed that the respondents, a married couple who were citizens of Mexico but residing in the U.S., "had given birth to a child, who, born in the United States, was a citizen of this country."

Beyond the legal arguments, birthright citizenship it is a moral issue that cuts to the core of what it means to be American. The 14th Amendment is the great leveler, guaranteeing that every person born within the boundaries of the U.S., regardless of station, has the same set of rights and privileges. To deny citizenship to children of undocumented immigrants is to hold them responsible for their parents' transgressions. As the Immigration Policy Center put it: "To punish babies, much less to proscribe and entirely outlaw them, because of the perceived sins of their parents is alien to our moral and ethical tradition."

It is a rare thing when candidates for the nation's highest office argue against 150 years of widely accepted legal precedent and endorse drastic changes to the nation's longstanding definition of citizenship. As the 2012 election season moves forward, the media should press candidates to explain their positions on birthright citizenship and the impact they'll have on future generations of (potential) American citizens.

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